PD (Grounds – implied variation – section 86(3))
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge |
| Judgment Date | 28 May 2008 |
| Neutral Citation | [2008] UKAIT 58 |
| Court | Asylum and Immigration Tribunal |
| Date | 28 May 2008 |
[2008] UKAIT 58
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Senior Immigration Judge Gill
For the Appellant: Mrs. J. Rothwell, of Counsel, instructed by Oaks Solicitors.
For the Respondent: Ms. R. Brown, Senior Home Office Presenting Officer.
PD (Grounds — implied variation — section 86(3)) Sri Lanka
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(1) The jurisdiction of the Tribunal is in all cases limited to the grounds of appeal, as varied before the Immigration Judge, plus any grounds contained in section 120 statements and Robinson obvious points. The Tribunal is not empowered by section 86 of the 2002 Act to allow an appeal on some other basis. Grounds of appeal cannot be varied by implication.
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(2) Paragraph (1) informs the approach that the Tribunal must take on reconsideration in determining whether an Immigration Judge has materially erred in law.
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(3) The Respondent's failure to consider the eligibility of an appellant under the backlog policy, announced in the White Paper entitled: “Fairer, Faster and Firmer – A Modern Approach to Immigration and Asylum” issued on 27 July 1998, does not raise any Robinson obvious point.
The Appellant is a citizen of Sri Lanka, born on 21 May 1965. He entered the United Kingdom on 10 June 1995 with entry clearance as a visitor, and claimed asylum on 12 June 1995. His application was refused by the Respondent on non-compliance grounds (under paragraphs 336 and 340 of the Statement of Changes in Immigration Rules HC 395, as amended) (the Immigration Rules), on 24 May 2000. His appeal was heard before Mr A J Martin, a Special Adjudicator (the first Adjudicator) on 31 May 2001, and dismissed on 11 July 2001. The Appellant did not embark. His representatives submitted further representations asking that his case be considered under the European Convention on Human Rights (ECHR). These representations were refused for reasons given in a letter from the Respondent dated 20 February 2002. His subsequent appeal was heard on 5 December 2002 before Mr C J Deavin, a Special Adjudicator (the second Adjudicator), and dismissed on 31 December 2002.
On 12 July 2005, new representatives made further representations on the Appellant's behalf, and sought to make a fresh asylum claim on his behalf. The Respondent did not accept the representations amounted to a fresh claim and gave reasons for this decision in a letter dated 2 October 2006. The Appellant was also served with notice of further removal directions dated 12 September 2006.
Oaks Solicitors, instructed as the Appellant's representatives, made representations against his proposed removal scheduled for 4 October 2006 and applied for Judicial Review. The Respondent, in a consent order dated 27 February 2007, agreed to treat the further representations of 2 and 3 October 2006 and the grounds of the Judicial Review application as a fresh claim. Those representations were rejected for reasons given in a letter dated 24 April 2007. The Respondent issued another notice of decision (a decision to refuse leave to enter) addressed to the Appellant on 18 May 2007. This contains proposals for the Appellant's removal to Sri Lanka.
The Appellant's appeal against the decision of 18 May 2007 was lodged on 6 June 2007. It does not assert that the Respondent's decision is not in accordance with the law, i.e., the grounds on which the appeal was brought did not include the ground in section 84(1)(e) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). The appeal was heard on 4 July 2007 before Immigration Judge Bart-Stewart, who dismissed the appeal on asylum, humanitarian protection and human rights grounds. On 16 August 2007, a Senior Immigration Judge refused to order reconsideration. By an order of the High Court dated 23 November 2007, the Tribunal was ordered to reconsider its decision.
In summary, the Appellant claimed to have joined the Sri Lankan police force on 1 August 1986. He claimed to have had frequent encounters with the Liberation Tigers of Tamil Eelam (LTTE). After each attack by the LTTE, he would arrest suspects and send them to his headquarters. He later discovered that some of the people taken into custody would disappear, and, when asked about their whereabouts by relatives, he would refer them to his headquarters, which often denied that the individuals had been taken there in the first place. The Appellant claimed that this caused problems with the relatives and ordinary civilians as well as the LTTE. He claimed that he voiced his disapproval of these incidents to his superiors to no avail. In April 1989, he was posted to Colombo and carried out undercover work against the Janatha Vimukthi Peramuna (JVP) and the LTTE. He went to India with two other officers on a surveillance operation and became involved in fighting. He rounded up more suspects, and they also disappeared. He wanted to desert his post because of this and because he could not carry out his functions properly. He claimed to have found out that the LTTE planned to assassinate him. He discussed the situation with his uncle who advised him to leave Sri Lanka.
At paragraph 17 of the determination, the Immigration Judge said that she took as her starting point the findings of fact of the previous Tribunals and which the Respondent accepted. That is, that the Appellant is a member of the Sri Lankan police force who was engaged in intelligence duties, which became known to the LTTE. An indeterminate number of people with whom he dealt disappeared and, because of his role in the security services, the Appellant's name was on an LTTE hit list. This was the state of affairs in 1995 and he decided to leave the country and seek refuge in the United Kingdom. In assessing the risk on return, the Immigration Judge referred to the judgment in Gedara [2006] EWHC 1690 (Admin) in which the Court, inter alia, accepted the Secretary of State's submission that, as a matter of established principle, there is no entitlement to refugee status because of risks arising out of service in the security forces, whether against an external or internal enemy. This principle applied equally to the ECHR claim. The Immigration Judge noted that a state is entitled to require soldiers and police officers as representatives of the organs of the state to face a heightened risk of harm from internal or external enemies in order that it can provide due and practical protection to its citizens. The state does not have to guarantee perfect safety and the real question is whether the protection offered in Sri Lanka is practical and effective in the particular circumstances of the individual's claim. The Immigration Judge had earlier noted the finding of the first Adjudicator that the Appellant's primary fear is of the LTTE, and not the authorities. The Tribunal accepted this, saying that the Appellant would be liable to suffer a revenge killing. The Immigration Judge noted that the first Adjudicator had already found that there is no evidence of risk of persecution as a deserter from the police force. The Immigration Judge then said that, given these conclusions, she found that the Appellant had not shown that he was entitled to asylum.
The Immigration Judge then turned to consider the Appellant's Article 2 and Article 3 claims. She again referred to the judgment in Gedara, noting that the Appellant as a former security officer may be at heightened risk of harm, but that it does not follow that this places him within the terms of the ECHR. She noted that the second Adjudicator had taken account of the substantial changes in Sri Lanka since the Appellant left, which included the ceasefire between the LTTE and the government, and the fact that it was seven and a half years since the Appellant had operated as a police officer in Sri Lanka. The only fear that the Appellant had expressed was of a revenge attack because of being on the LTTE hit list. The Immigration Judge noted that a further four years had moved on since the previous hearing. The Appellant has now been in the United Kingdom for twelve years. She then turned to consider the expert evidence of Mr David Rampton, whose expertise she accepted. At paragraphs 26 and 27 of the determination, the Immigration Judge said:-
“26. On the issue of desertion he said that police in hundreds have abandoned posts and later resigned prompting speculation that they were to be charged with cowardice. He said it remains unclear whether the appellant would face formal charges though he might be disciplined. He considered it highly unlikely that the JVP would represent a threat or have an adverse interest in the appellant and he has little to fear from the JVP on return to Sri Lanka. He considers what the appellant says about being on the LTTE hit list. He considers this presents a serious threat as the LTTE is and has been capable of ruthless elimination of opponents, which has not receded. He lists a number of individuals assassinated as anti LTTE activist [sic], supporters and suspected collaborators. He considers that the large number of such assassinations indicates that the Sri Lankan authorities are incapable of protecting individuals who face persecution and harassment from the LTTE. He also considers the risk of asylum and detention at the airport. This he accepts usually applies to failed Tamil asylum seekers but considers it plausible that the appellant will undergo the same suspicions and experiences.
27. The country conditions described by Mr. Rampton do not differ from that in the extracts of the COIR relied on by Ms Jagaraja. Whether these conditions pose a real risk for the appellant is the issue I must decide. I accept Mr. Rampton as an expert on the political conditions in Sri Lanka...
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